FREQUENTLY ASKED QUESTIONS ON THE EMPLOYMENT BASED PERMANENT RESIDENCY (GREEN CARD) PROCESS THRU ALIEN LABOR CERTIFICATION
What are the steps to get a green card for an employee through labor certification?
For most individuals who obtain U.S. permanent residence through employment, the steps are:
Step 1 - Labor Certification Application: The employer must first file an application for an alien employment certification ("labor certification") with the U.S. Department of Labor (DOL) on behalf of the individual. Effective 3/27/2005, a new system called PERM is being implemented. Read below for more information. This new process was announced on 12/27/2004.
Step 2 - Immigrant Petition (I-140): Once the labor certification application is approved or certified, the employer/company files an immigrant petition with the U.S. Immigration and Naturalization Service (INS).
Step 3 - Adjustment of Status (I-485): Once the immigrant petition is approved (*), the employee can apply for adjustment of status to U.S. permanent resident (for him/herself and his/her spouse and/or children, if applicable).(*)NOTE:After 7/31/02, INS issued a new concurrent filing rule and now, I-485 can be filed even while the I-140 is pending and not yet approved.In fact, both the I-140 and I-485 can be filed together (thus the rule is called the “concurrent filing rule”). Further, effective 5/1/2004, all I-140 and I-485 petitions filed together, will be adjudicated together as well, under the "Concurrent filing and adjudication process"
SYNOPSIS OF PERM – The alien labor certification process
PERM – Nuts and Bolts
The US Department of Labor has released the long-awaited PERM labor certification rules governing the alien labor certification process for employment-based permanent residency petitions. The rules for the new electronic filing system are available online at http://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.gov/2004/pdf/04-27653.pdf and the program will go into effect in on March 27, 2005.We are following the implementation of the new system very closely and have summarized 322 pages of this regulation into a simple 3-page document so as to get a broad overview of the new process without too much legalese.
PERM is the new alien labor certification system that will allow employers to file labor certification petitions online.Employers will be required to conduct specific mandatory and additional recruitment steps prior to filing the PERM labor certification.However, employers will not be required to submit supporting documentation concerning the recruitment steps undertaken before filing a PERM application, but rather, will instead be required to retain all documentation for inspection in the case of an audit.A certain percentage of all cases will be flagged for a more extensive supervised recruitment process, but most cases will be approved within 45 to 60 days.
State Workforce Agencies will no longer be the in-take point for the alien labor certification cases, and will largely be removed from the process with most of the case being managed by two regional US Department of Labor offices.The SWAs will still have responsibility for managing prevailing wage determinations.
Key features of PERM:
·Federal Register Publishing Date: 12/27/2004
·PERM Launch Date: March 27, 2005
·Generally, the advertising requirements are fairly lenient, and should be do-able
·New Form called ETA 9089, to be filed electronically and certified electronically with the USDOL, and not the SWA (state workforce agency).
·Processing Time: 45-60 days after filing.
·The PERM process is attestation based, meaning that the USDOL takes the employer’s representations as the truth.The PERM labor certification process does not require submission of the foregoing recruitment documentation initially at the time of the filing. However, the Certifying Officer can ask for proof of such documentation during an audit, and the employer must make these documents available.Additionally, the employers are required to keep these documents as evidence for five (5) years from the date of filing of the PERM application.
·Conversion of pending labor to PERM with Retention of Priority Date: An employer can convert pending RIR type alien labor certification application to PEREM without losing priority date if the pending RIR type alien labor certification is withdrawn and re-filed within 210 days from the date of withdrawal and the occupation is identical. Conversion of a non-RIR (regular) alien labor certification to PERM is not available after the employer commences the SWA (state workforce agency) supervised recruitment process (job order).
·PERM conversion timing critical for India, China and Philippines born nationals because if the alien labor certification is filed and pending under EB3, then it is very important to preserve the Priority Date and the PERM conversion must be done within 210 days after the pending alien labor certification is withdrawn.
PERM is an Electronic Filing Method
When the PERM system is up and running, the new ETA 9089 form will be located at the USDOL’s website at http://www.workforcesecurity.doleta.gov/foreign.The site will include instructions for filling the form, as well as prompts and checks to ensure applications are submitted properly.There will also be a system that will allow employers that file PERM applications pretty frequently, to set up secure files with in the ETA filing system containing information common to any permanent application they file.Each time an employer submits an ETA 9089, the common information will be entered automatically (similar to the current ETA9035 for the LCA filing for H-1B cases) and only the data specific to that application will need to be manually entered.
Once a PERM ETA 9089 application is filed, the form must be printed out and signed by an employer immediately. A copy of the signed form must be maintained in the employer’s files and the original signed application must be submitted to support the I-140 immigrant petition that is submitted to the USCIS.
PERM Conversion Rules
An employer can convert pending RIR type alien labor certification application to PEREM without losing priority date if the pending RIR type alien labor certification is withdrawn and re-filed within 210 days from the date of withdrawal and the occupation is identical. Conversion of a non-RIR (regular) alien labor certification to PERM is not available after the employer commences the SWA (state workforce agency) supervised recruitment process (job order).The following rules apply:
1.The new PERM labor certification must be filed within 210 days after withdrawal of the pending alien labor certification to preserve the old priority date.
2.The new application must satisfy two conditions:
(i)The PERM alien labor certification application should satisfy all of the eligibility requirements for certification under the PERM regulations; and
(ii)The PERM alien labor certification application should state the "identical" job which was stated in the pending application, such as:
(e)Minimum requirements for the position offered
(f)The job description; and
3.The employer can make amendments to the pending alien labor certification application, subject to SWA approval, up to the time of withdrawal of the pending application before conversion to PERM.Hence should the employer need to make key amendments to the pending cases before withdrawal, for the purpose of a successful filing of the new application under the PERM regulation, the employer should seek to make such amendments immediately before launching the specific recruitment campaign in anticipation of filing of a PERM regulation.For example, if there is an issue with a wage offer being too low or below 100% of the prevailing wage, or if certain minimum educational or work experience requirements are there that could potentially be considered unduly restrictive, the employer ought to amend this before it is too late and pretty quickly in the next 90 days.
PERM Recruitment Requirements
The PERM effective is set at 90 days from publication of the rule, in order to allow the employers time to conduct the PERM recruitment process before the regulation takes effect on March 27, 2005, which gives the employers enough time to conduct the PERM recruitment campaign in order to set the stage for PERM filings and PERM conversions.The PERM regulation requires different level of recruitment activities depending on the level of occupations, whether professional or non-professional.This summary limits itself to the “professional” occupations, i.e., those requiring at least a Bachelor’s Degree.
PERM Recruitment requirements for professional occupations prior to PERM filing
A.MANDATORY RECRUITMENT STEPS
Placement of a Job Order:The job order must be placed with the state workforce agency (SWA) in the area of intended employment for 30 days. The national bank search job order must remain open for at least for 30 days. The employer should obtain and retain the documents evidencing the start and closing of the job order from the SWA.The employer should also obtain the prevailing wage for the job offered from the SWA to be sure that there is no issue raised with respect to the wage offer, particularly when the job offered is one requiring experience or a Master’s Degree, for classification in the E2 classification.
Two Sunday Daily Newspaper Ads: The following rules apply:
(a)These ads can be placed in a newspaper on two consecutive Sundays.
(b)The second ad must be published at least 30 days prior to filing of the PERM labor application.
(c)For the jobs that require a Bachelor's degree without an experience requirement, two newspaper ads are required as a minimum.
(d)For jobs that require either a Bachelor's degree PLUS experience, or an advanced degree, such as a Master’s Degree, the employer can provide one newspaper ad and one professional journal ad.For example, for a job located in Chicago, Illinois in an the IT field, an employer can run one Ad in the Sunday edition of the Chicago Tribune and one ad in the Computerworld or Networkworld or Infoworld sister publications.
B.ADDITIONAL RECRUITMENT STEPS
In addition to the above mandatory recruitment steps, the employers are also required to engage in at least three (3) out of the possible ten (10) additional recruitment activities.
(1)Job Fair: An ad in a job fair naming the employer and describing the job offered.Keep copies of the job fair brochure and the ad
(2)Internet posting of the job in the Employer’s website.Take print outs of the ad posted on the website
(3)Internet posting of the job in major Job Search Websites:For example, for an IT job in Chicago, IL, an employer can run the newspaper ad in the Chicago Tribune newspaper and concurrently also run the same ad in the www.careerbuilder.com Internet website.Chicago Tribune, for example, gives a package deal where they will run the ad in the Sunday newspaper for 1 day and for an extra few dollars they will run the ad in the www.careerbuilder.com website for 1 full week.We do that all the time for the current RIR advertising processes.Take print outs of the ad posted on the website
(4)Recruitment activities conducted in cooperation with On-Campus Placement Office at a university campus: The employer should a statement from the college and university placement office that it was posted with the name of the employer and date of interviews conducted.
(5)Ads run in trade or professional organizations, and their newsletters
(6)Headhunters or recruitment agencies: Copies of the contract and the job description and list of any resumes received and results of the head hunting efforts must be maintained.
(7)Documentation of Incentive programs to other employees for future Employee referrals
(8)Ads run in Local newspapers or trade journals
(9)Ads run on TV or Radio:Keep copies of paid invoices.
Required Text of the Ads:The PERM regulation requires that the ads confirm to certain requirements.
The ads should state:
(i)Name of the employer;
(ii)Statement directing potential job applicants to send resumes to the employer;
(iii)Job description should be written with specificity(no generic ads);
(iv)Ad must state the geographic location of the work site;
(v)Ad does not have to state the wage offered.However, if the wage is stated, it must be equal to 100% of the prevailing wage, as determined by the SWA.The PERM rule eliminates the 95% rule pursuant to the Omnibus Appropriation Act of 2005 and the employer must pay at least 100% of prevailing wage as determined by the SWA;
(vi)The minimum requirements for the position offered, and the job duties of the position offered, as stated in the newspaper ad, should match with the manner in which these two items are later stated in the alien labor certification application to be filed; and
(vii)The specific terms and conditions of employment do not have to be stated in the ad, but if the employer chooses to advertise such information, these must not be less favorable than those actually offered to the alien.
PERM is an Attestation based filing and requires careful retention of the underlying recruitment documents in the event of an audit:
(1)The PERM labor certifications are filed electronically using form ETA9089 with
the USDOL.It would normally be certified in 45-60 days.
(2)The SWA is out of the picture and nothing is filed with the SWA, except that they are used for prevailing wage determination.
(3)The system is attestation based, meaning that the USDOL takes the employer’s representations as the truth.The PERM labor certification process does not require submission of the foregoing recruitment documentation at the time of the filing. However, the Certifying Officer can ask for proof of such documentation during an audit, and the employer must make these documents available.Additionally, the employers are required to keep these documents as conclusive evidence of compliance with the mandatory and additional recruitment steps prior to PERM labor certification filing, for five (5) years from the date of filing of the PERM application filing.
(4)The audits can be based on an employer being targeted for an audit, and also on a random pick for quality control purposes.
(5)If the employer is audited, and fails to provide satisfactory evidence, a Notice of Findings is issued and the process can be significantly delayed.
(6)If the employer is audited, and the CO is satisfied with the documentation provided, the labor certification will be certified.